The Hawaiian gazette., 1887-02-01

Wluenlng or altering any ROAD &C., anu mat
the Jury snail have the same powers as the
Commissioners provided for 1t that Act
On the 22d of March, 1856, the Minister
of the Interior, acting under the powers con-
ferred upon him, addressed a request to the
Chief Justice stating that 1t had been made
to appear, to the Minister, that Fort Street,
between King and Merchant Streets, should
be widened, and requiring the Chief Justice
ito cause a jury to be selected in accordance
with law to decide upon the ACCESSIBILITY of
1.-THE proposed improvements"
The Chief Justice thereupon issued an or
der to the Marshal to draw jury as required
and directed the Marshal to certify the find
ing of the jury to the Minister of the
Interior.
The Marshal drew the jury from the list of
twenty-four voters selected by the Chief
Justice, and attended with them on the 23d
March to view the locality, and the jury hav-
ing recommended the proposed alteration,
/ the Marshal certified the same to the Min
lister of the Interior.
/ 1t was contended on behalf of the appel
liant, that these proceedings were irregular
on the grounds:
l. That there was nothing on the record
( to show what caused the Minister of the In
/ terror to widen the street. If not upon
/ petition by fifty tax payers, then it should
/ appear on record in what other way it was
made to appear to the Minister that the
] street required widening.
2. That the Marshal should not have GER
I tltled the finding of the jury to the Minister,
but the verdict should have been certified
under the seal of the Court.
am Of opinion that these objections are
not sound, and that up to this time all the
proceedings were regular and in accordance
with law.
With regard to all the subsequent proceed
ings taken, a careful consideration of the
law and the various papers and documents
put in evidence, lead me to the conclusion
/ that the award of the Commissioners cannot
be sustained.
! 1 will therefore set out the proceedings
which l consider the law requires to be
taken, and point out where, in my opinion,
1 the law has not been observed.
After the certificate of the finding of the
jury has been filed with the Minister and
the work has been determined upon, it be-
comes the duty of the road supervisor to
cause notices to be posted along the line of
road calling upon all parties Interested to
forward their claims &c.
( The road supervisor did post notice pur-
porting to be in conformity with the statute,
but such notice so far as is necessary to set
/ it out only notified ''aH OiCJierS of DrOperty
to send in their claims" so that occupiers
and lessees who are not within the terms
owners were not notified, as they would have
I been had all persons interested been notified
as required by the statute.
In accordance with the notice given by the
road supervisor the appellant bradley and
three other owners of property, viz, w. E.
Foster another appellant and Mrs. iLack
and A. l.. Smith filed their claims with the
Police Justice-Bradley claiming $4,000.
These claims were forwarded by the Police
Justice to the Minister of the Interior on the
9th March, 1856.
On the Both March the Minister of the In
terror purporting to act under the laws be
fore mentioned appointed K. f. Bickerton,
NJ. p. Robinson and S. NJ. Damon especial
Board of Commissioners to consider the
claims and to assess the damage likely to
''5e sustained by the owners and occupiers
"of land to be taken, and to determine what
'estates are especially benefited, and the
amount of benefit accruing to each by rea-
'son of the widening of Fort Street between
Merchant and King Streets
'To do and perform all the duties set forth
sin said laws and all other laws of this King
dom which are applicable to such COM
mission"
1t was objected on behalf of the appellant
that it did not appear from the record that
the Minister of the Interior and the several
claimants were unable to agree upon the
amounts to be paid to the claimants.
By Section 1856 of the Civil Code before it
was amended, it would seem that upon the
receipt of the claims, the Minister had no
discretion as to settling them, but that he
was obliged to appoint Commission to as
certain the amount payable.
This was altered by the Act of 1872 amend
ing the Section and | am of opinion that by
such amendment the Minister was precluded
from issuing commission, unless the Minis
ter and the claimant had disagreed as to the
amount payable, and that some endeavor
should have been made by the Minister to
adjust the amount, or notice given to the
claimant that the Minister considered the
amount claimed to be excessive.
an attempt was made at the trial to prove
this by the evidence of Mr.. Gulick (the Min
lister OF the Interior at the time these pro
ceedings were taken) who testified after re
''ceiving the claims there was disagree
"ment between the Minister and the several
'claimants-Bradley's was greater than l
Thought to be just by myself"
On cross examination, the witness admitted
that the conversations which he had with
Bradley we're on the street and after the
notice of appeal was given.
Under these circumstances l am of opinion
that the appointment of the Commission
was invalid, and l might here rest my judg-
ment.
But the other questions raised are so i'm
portant to the public that deem it best to
deal with every point raised.
On the 31st March the Commission report
ed to the Minister and awarded for damages
to the appellant Fl. Bradley for 245 square
feet a Sc, 81 40"
The other claimants were also awarded
damages at the rate of $3.50 per square foot.
The Commissioners recommended that the
expenses of altering buildings should be
paid by the Government.
The Commissioners also adiugded to be
paid By the several properties therein men
TONED for betterments the sum of So per
foot frontage for owners and $3.50 per foot
for tenants.
Brad!ey's share amounted to $232.75.
The Minister of the Interior then comput-
ed the amounts payable to each claimant and
the amount payable by estates benefited.
The amount payable to claimants for dam
ages being 81, 491. 80 and the amount to be
paid By the several owners and occupiers for
benefits being $2,S47.15.
In assessing the various amounts the Com
missioners, did not see any of the parties
interested, or take any evidence in support
of the claims, but merely examined the prop
critics and used their own judgments as to
the amount of damage DC.